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Court Approves Warrantless Surveillance Rules While Scolding F.B.I.

ImageThe court rulings involved surveillance programs that grew out of once-secret initiatives begun under President George W. Bush, seen here at the White House in 2006.
Credit…Andrew Councill for The New York Times

WASHINGTON — The nation’s surveillance court found that the F.B.I. had committed “widespread violations” of rules intended to protect Americans’ privacy when analysts search through a repository of emails gathered without a warrant, but it nevertheless signed off on another year of the program, according to a newly declassified ruling.

The heavily redacted, 83-page ruling about the warrantless surveillance program was issued in December and became public on Friday after it was declassified and posted on a government website.

The release came days after a federal appeals court ruled in a different case that another, now-defunct surveillance-related program, in which the National Security Agency collected bulk logs of domestic phone calls, was illegal. The court nevertheless declined to overturn the convictions of defendants in a terrorism financing case that had included evidence derived from the program and that the government had pointed to in making the case for the program’s value.

The two programs both grew out of the Stellarwind project, a once-secret group of warrantless surveillance and bulk data collection activities that President George W. Bush started under a claim of executive power after the Sept. 11, 2001, terrorist attacks. The programs evolved as the government tried to put them on a firmer legal footing.

The December court ruling released on Friday centered on the warrantless wiretapping program, which since 2008 has been governed by a law known as Section 702 of the FISA Amendments Act. That law authorizes the government to collect — without a warrant — from American companies, like Google and AT&T, the emails and phone calls of noncitizens abroad for foreign intelligence purposes — even when they are communicating with Americans.

Privacy rights advocates have long raised alarms about that program centering on the fact that it enables the government to sometimes read private messages of Americans that are gathered without a warrant. In 2018, when Congress reauthorized Section 702, it added a requirement that the Foreign Intelligence Surveillance Court approve rules every year limiting how analysts may query the data.

In the newly disclosed ruling, James E. Boasberg, the chief judge of the FISA Court, signed off on the new annual set of rules, but not before scolding the F.B.I. over many instances in which its analysts had violated a previous set of them, including requirements that searches of the repository have a foreign intelligence or criminal purpose.

“It must be noted, however, that there still appear to be widespread violations of the querying standard by the F.B.I.,” he wrote.

Most notably, in August 2019, the F.B.I. made a query for information using the identifiers of about 16,000 people, even though only seven of them had ties to an investigation. The F.B.I. argued that the entire search met the standard of being reasonably likely to retrieve foreign-intelligence information or evidence of a crime, but Judge Boasberg called that position “unsupportable” and portrayed all but the seven as “broad, suspicionless queries.”

Credit…Anna Moneymaker/The New York Times

From 2006 to 2015, that program operated under a once-secret interpretation of a law known as Section 215 of the Patriot Act, which says the F.B.I. may collect business records that are deemed “relevant” to a counterterrorism investigation. While the FISA court secretly approved that interpretation, two appeals courts in the regular court system have now said it was wrong.

The program was exposed in 2013 via the leaks by the former intelligence contractor Edward J. Snowden. During the ensuing debate, it emerged that the program had never thwarted a terrorist attack. The most concrete achievement attributed to it by a range of officials and reports was that it had led the F.B.I. to reopen a terrorism-related investigation into several men who were later convicted of sending money to a Somali terrorist group.

Those men challenged their convictions, arguing that evidence against them gathered by a subsequent wiretap should be suppressed because it derived from an illegal program. In a long-delayed ruling, the Ninth Circuit agreed that the program violated FISA, but it declined to overturn the men’s convictions — suggesting that the government had exaggerated the significance of the program in its investigation.

“Based on our careful review of the classified FISA applications and related information,” the panel wrote, “the FISA wiretap evidence was not the fruit of the unlawful metadata collection. Again, if the statements of public officials created a contrary impression, that impression is inconsistent with the facts presented in the classified record.”

Before the release of the newly declassified court opinion about the 702 program, the Office of the Director of National Intelligence, John Ratcliffe, organized an embargoed press briefing with the office’s chief privacy officer and officials from the F.B.I. and the N.S.A. For years, such briefings for regular surveillance legal policy beat reporters have been routine when the government is declassifying a technically and legally complex document about surveillance.

On Friday, however, the office excluded The New York Times. A person familiar with internal deliberations said that Mr. Ratcliffe had ordered his office’s communications staff not to talk to The Times after a story in early August published in The New York Times Magazine about White House pressure to downplay intelligence about Russia’s covert efforts to help President Trump win the 2020 election. A spokeswoman for Mr. Ratcliffe declined to comment.

Julian E. Barnes contributed reporting.

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